House Passes NDAA 2013 with Indefinite Detention Intact

Yesterday, the House passed the National Defense Authorization Act which funds the Pentagon and military operations for 2013 to the tune of $633 billion.

The vote was 315-107, but the final draft must still be approved by the Senate.

The Senate version included an amendment that was supposed to protect Americans against indefinite military detention. That amendment was reportedly scrubbed from the final House version of the NDAA.

The Feinstein Amendment provided that:

an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States unless an act of Congress expressly authorizes such detention.

Some have argued that the NDAA 2012 act of Congress negates this amendment making it impotent to begin with. However, this amendment apparently stated Americans’ rights too clearly, so the House had to rewrite it in legalese.

Spokespeople for the Senate said the amendment was replaced with the following language:

Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

Some say this convoluted form does nothing to protect a right to trial for detained Americans.

“This language doesn’t do anything of substance,” said Raha Wala, a lawyer at Human Rights First. “It doesn’t ban indefinite detention within the United States or change anything about existing law.”

‘The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional,’ Sen. Paul said.

‘I voted against NDAA in 2011 because it did not contain the proper constitutional protections. When my Senate colleagues voted to include those protections in the 2012 NDAA through the Feinstein-Lee Amendment last month, I supported this act,’ Sen. Paul continued.

‘But removing those protections now takes us back to square one and does as much violence to the Constitution as last year’s NDAA. When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.

Saying that new language somehow ensures the right to habeas corpus – the right to be presented before a judge – is both questionable and not enough. Citizens must not only be formally charged but also receive jury trials and the other protections our Constitution guarantees. Habeas corpus is simply the beginning of due process. It is by no means the whole.

Our Bill of Rights is not something that can be cherry-picked at legislators’ convenience. When I entered the United States Senate, I took an oath to uphold and defend the Constitution. It is for this reason that I will strongly oppose passage of the McCain conference report that strips the guarantee to a trial by jury.’ (Source)

It’s unclear who pulled the amendment from the House version, but the White House likely pressured Congress to change it. Immediately following the passage of the amendment, the White House threatened to veto the bill citing it “limits his ability to pursue his defense strategy and trespasses on his power.”

Other activist groups are encouraging the President to veto the bill over restrictions placed on dealing with Guantanamo detainees.

Now that the bill is back to being as tyrannical as it can be for the American people, we can expect President Obama to once again sign it into law under the cover of darkness like he did last year late New Year’s Eve.